LJ Fairburn & Son Ltd & Ors, R (on the application of) v Secretary of State for Environment Food and Rural Affairs

Where the state condemns healthy poultry for compulsory slaughter to prevent disease, the statutory right to compensation under paragraph 5(2) of Schedule 3 to the Animal Health Act 1981 accrues when the birds are condemned, not when they are slaughtered. The amount is nevertheless valued by reference to the bird immediately before slaughter.

Avian influenza is included within the statutory definition of disease because it is substantively the same disease as fowl plague. Condemnation is a control of use for A1P1 purposes. The compensation scheme was not manifestly without a reasonable foundation, but the policies were unlawful because they failed to reflect the proper accrual point.

The claimants were poultry farmers whose birds were condemned for slaughter during outbreaks of avian influenza. Under the defendant’s former policy, compensation for healthy birds was calculated by reference to those actually alive and slaughtered. A new policy calculated compensation by reference to the health assessment made at the outset of planned culling.

The claim challenged both policies under the Animal Health Act 1981, and under Article 1 of Protocol 1 to the ECHR. The defendant also argued that challenges to earlier compensation decisions were out of time. The central issues were whether avian influenza was statutory disease, when the right to compensation accrued, whether the scheme was A1P1-compatible, and whether the claims were timely.

1. Grounds 1 and 3 succeeded; Ground 2 was dismissed. The old and new compensation policies were declared unlawful. The defendant was required to reconsider the compensation payable to the claimants in light of the judgment.
2. Avian influenza fell within section 88(3)(a) of the Animal Health Act 1981. The evidence established that modern avian influenza was substantively the same disease as the statutory reference to fowl plague. The statutory orders did not alter that conclusion.
3. The ordinary words of paragraph 5(2) did not resolve whether compensation accrued on condemnation or slaughter. The wider statutory context supported accrual on condemnation. Sections 34(1) and 34(7)(a), the 1959 Order, and other provisions of Schedule 3 distinguished the event giving rise to compensation from the later valuation of the bird.
4. The statutory purpose also supported that construction. The scheme compensated keepers where healthy birds were destroyed for the public good and encouraged early reporting. The defendant’s construction could create an incentive to delay culling, contrary to article 20 of the 2006 Order. The claimant’s construction created manageable evidential issues, including through existing records and arbitration under the 1959 Order.
5. The right to compensation under paragraph 5(2) therefore accrued at condemnation, although valuation remained linked to the bird’s value immediately before slaughter. The new policy was unlawful because it did not operate on that basis and positively misstated the statutory effect.
6. Condemnation was a control of use, rather than a deprivation, for A1P1 purposes. The scheme provided some market-value compensation and contained safeguards against delay. Its approach was not manifestly without a reasonable foundation and remained within the state’s margin of appreciation.
7. The challenges to the earlier decisions were brought in time because they concerned an ongoing failure to perform an obligation of result. Alternatively, time would have been extended, and permission granted, because the issues were important, arguable and substantially overlapped with Ground 3.

First-instance judicial review. No prior appellate decision was stated in the judgment.